Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Neil J. Wilkof, Annsley Merelle Ward, Darren Smyth, Nicola Searle, Eleonora Rosati, David Brophy, Alberto Bellan and Merpel, with contributions from Mark Schweizer. You're welcome to read, post comments and participate. You can email the Kats here

From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Tuesday, 16 December 2014

Improving the legal framework for online enforcement of IP
rights, notably copyright, has been probably the most debated policy topic in a
number of jurisdictions in 2014, and will likely be so also in 2015.

The recent decision of the Court of Justice of the European
Union (CJEU) in Telekabel[here and here]clarified once and for all that blocking orders are compatible with EU law, and
that it is left to the concerned internet service providers (ISPs) to determine
how best to achieve the result sought by the relevant rightholder(s).

Moreover in the
landmark decision in Cartier[here and here], by which the High Court issued the first blocking order in the
UK against a number of websites that advertised and sold counterfeit goods,
Arnold J expressed the view that currently there are no measures which are as
effective as blocking orders. Although blocks may be circumvented (in its report entitled “Site Blocking” to Reduce Online Copyright Infringement: A Review of Sections 17 and 18 of the Digital Economy Act, OFCOM indeed concluded that all blocks may be circumvented), measures such as
notice-and-takedown, de-indexing or payment freezing do not appear to have the
same efficacy as blocking orders.

The conclusion of
Arnold J is particularly relevant with regard to payment freezing, considering
that recent papers, eg the Discussion
Paper by Mike Weatherley MP entitled Search Engines and Piracy in the UK, the Action Plan on the enforcement of IP rights[here] that the last EU Commission issued shortly
before the end of its term of office, and the 2014 edition of How Google Fights Piracy, argued instead
that ‘Follow the Money’ is the approach with the best potential in terms of
efficacy. Although payment freezing would have the advantage of a worldwide
effect, Arnold J held the view that it would also allow the offending website
to continue until it is so starved of funds that it ceases operation. It is
unclear whether such time would ever come though, on consideration that the
website at hand may simply shift to alternative payment methods.

Arnold J also rebutted
one of the arguments often advanced against the availability of blocking
orders, ie that they are costly for
ISPs to implement. Evidence would suggest that the average cost of an unopposed
application for a section 97A CDPA order (this is the provision by which UK
transposed Article 8(3) of Directive 2001/29 into its own legal order) is not
prohibitive: it appears to be around £14,000 per website, excluding subsequent
monitoring costs.

In addition Arnold J
also held the view that the risk of overblocking (yet another argument advanced
against the availability of blocking orders), as well as related reputational
damage for the concerned ISPs, would not be significant.

Overall it is fair to
assume that the Telekabel and Cartier decisions will orientate future IP
and copyright enforcement policy debate to a significant extent, both in Europe
and elsewhere.

At the EU level how to
ameliorate online enforcement has been discussed for a while now (at least
since the 2011 Commission’s blueprint on IP rights[here]), although no actual reform
initiatives – whether relating to Directive 2004/48 or Directive 2001/29 – have
been placed on the table yet.

I see ... I see a blocking order in your future

Outside the EU, following
the introduction in 2014 of provisions allowing rightholders in Singapore to
apply for blocking orders, 2015 will likely be another big enforcement policy year
in the Asia-Pacific region, notably Australia. As a follow-up to the 2014
public consultation on Online Copyright Infringement, among other things Government recently announced its
intention to amend the Copyright Act to allow rightholders to apply for a court
order that would require ISPs to block access to websites operated outside of
Australia.

Blocking orders may be
brought back into discussion even in
the US, despite the blackout that followed the public stir caused by
unsuccessful SOPA/PIPA initiatives. This might be the case if the lobbying
efforts of content owners in the US, as revealed by the recent Sony hack, succeeded.

Overall, the
international policy debate in 2015 around online IP enforcement and availability
of blocking injunctions, whether to block websites hosting infringing content
or selling counterfeits, will necessarily include an assessment of the European
experience. Such experience is only
the one of courts – whether the CJEU or national, notably UK, courts – though. At
the EU level in particular, the actual
input of actual policymakers (read:
the EU Commission or Parliament) has been scarce over the past 3-4 years. With
a new Commission now in place, in 2015 it will be also interesting to see if a
real EU agenda for online enforcement of IP rights is also proposed and
developed outside courts, ie at the
policy and legislative levels.

IPKat Policies

This page summarises the IPKat policies on guest submissions and comments. If you have posted a comment to one of our blogposts and it hasn't appeared, it may be because it doesn't match our criteria for moderation. To learn more about our guest submissions, comments and complaints policy and the procedure for lodging a complaint click here.

Has the Kat got your tongue?

Just click the magic box below and get this page translated into a bewildering selection of languages!